TV and radio stations are predicted in some quarters to reap north of a half-billion dollars in additional political ad money during the midterm elections–all thanks to the Supreme Court.
In its Citizens United decision last fall, the court said corporations and unions can directly fund ads supporting or opposing political candidates, and those ads can be charged the full freight rather than the lowest unit rate that must be given to qualified candidates.
In an e-mail to stations, veteran communications attorneys Erwin Krasnow and John Wells King of law firm Garvey Schubert Barer drew up some points for stations to ponder, as the stations prepare for what they hope will be an influx of third-party ads. B&C obtained a copy of the memo, and the pair agreed to its publication.
1. Issue and other political ads purchased by persons who are not legally qualified candidates for public office are not entitled to the lowest unit charge.
2. Issue spots must contain the proper sponsorship identification, and a list of officers of the sponsor must be placed in the local public file.
3. Unlike advertising by candidates for public office that are a “use” (any positive appearance that is controlled, sponsored or approved by a candidate, whose voice or likeness is either identified or readily identifiable in the broadcast material), stations should review spots by third parties to make sure the claims are true. Stations have the right to accept or reject such ads for any reason or for no reason.
4. Stations should also carefully review issue ads that include an appearance by a candidate that is sponsored by an entity other that the candidate’s authorized committee (and is not sponsored by the supporters of the committee’s opponents), to determine whether such ads will trigger opposing candidates’ rights to equal opportunities, and must therefore be noted in the station’s political file.
5. Based on the reasoning contained in Citizens United, it appears that the Federal Election Commission will no longer enforce its rule prohibiting the broadcast of any PSA featuring a federal candidate within 30 days of a primary election and within 60 days of a general election because it would be deemed an “electioneering communication.” To date, the FEC has not addressed that issue.
6. Stations must continue to abide by the disclosure and record-keeping requirements of the Bipartisan Campaign Reform Act.